Ohio revises durable power of attorney for health care law

Ohio recently revised the statute governing the durable power of attorney for health care to update several provisions and to cover certain issues that may arise involving guardianships. The changes allow for access to protected health information about the patient, regardless of whether the person has lost capacity; further clarify who is ineligible to witness the power of attorney instrument; and establish that a valid living will declaration revokes all prior declarations.

The revisions make it clear that a durable power of attorney for health care, or DPOAHC, may authorize the attorney-in-fact (the person designated to act in the principal's behalf) to obtain all health information, including protected health information. This would be regardless of whether the patient has the capacity to make "informed health care decisions." The authorization may include the right to give or refuse to give informed consent, or to withdraw informed consent to any health care that is being or could be provided to the principal.

The changes also make it clear that no attorney-in-fact named in the power of attorney, whether primary or alternate, may act as a witness to the principal's signature. Also, the law now provides that unless otherwise provided in the document, the proper execution of a new durable power of attorney for health care revokes all prior DPOAHCs.

The updated act provides that a principal may nominate a guardian for consideration by a court if proceedings for the appointment of a guardian for the principal's person, estate or both are commenced at a later time. The principal may authorize either the person nominated as the guardian or the attorney-in-fact to nominate a successor guardian for consideration by the court. The principal's nomination of a guardian is revoked by subsequent nomination of a guardian.

Except for good cause or disqualification, the court must make its appointment of a guardian in accordance with the principal's most recent nomination. The principal may direct that bond be waived for a person nominated as guardian or successor guardian. A DPOAHC that contains the nomination of a person to be the guardian may be filed with the probate court for safekeeping, and the probate court must designate the nomination as the nomination of a standby guardian.

The new act also provides that if a guardian is appointed for the principal, a DPOAHC is not terminated, and the authority of the attorney-in-fact continues unless the probate court limits, suspends or terminates the DPOAHC after notice to the attorney-in-fact and upon a finding that the limitation, suspension or termination is in the best interest of the principal.

If you would like to have your durable power of attorney for health care—or any other of your estate planning documents—reviewed and updated if necessary, please contact your lawyer at Nicola, Gudbranson & Cooper.

—Jim Chriszt